Smti. Kalpana Bala Das vs The Union Of India And 4 Ors.

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GAHC010092862018

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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2838/2018
SMTI. KALPANA BALA DAS
W/O SHRI DIBYAJYOTI KALITA
H/O 64, VIDYA MANDIR PATH,
BHETAPARA
GUWAHATI, PIN - 781028,
DIST. KAMRUP (M), ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS.
REP. BY THE SECRETARY , GOVT. OF INDIA, MINISTRY OF SCIENCE AND
TECHNOLOGY, DEPARTMENT OF SCIENCE AND TECHNOLOGY,
TECHNOLOGY BHAVAN, NEW MEHRAULI ROAD, NEW DELHI-110016.
2:THE INSTITUTE OF ADVANCED STUDY IN SCIENCE AND TECHNOLOGY
REP. BY THE DIRECTOR
IASST
VIGYAN PATH PACHIM BORAGOAN
GARCHUK
GUWAHATI- 781035.
3:THE DIRECTOR
THE INSTITUTE OF ADVANCED STUDY IN SCIENCE AND TECHNOLOGY
VIGYAN PATH
PACHIM BORAGAON
GARCHUK
GUWAHATI-781035.
4:THE CHAIRMAN
ACADEMIC COMMITTEE

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THE INSTITUTE OF ADVANCED STUDY IN SCIENCE AND TECHNOLOGY
VIGYAN PATH
PACHIM BORAGAON
GARCHUK
GUWAHATI- 781035.
5:THE REGISTRAR
THE INSTITUTE OF ADVANCED STUDY IN SCIENCE AND TECHNOLOGY
VIGYAN PATH
PACHIM BORAGAON
GARCHUK

GUWAHATI- 781035

B E F O R E
Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the petitioner : Shri S. Bharali, Advocate.

Advocates for the respondents : Ms. B. Sharma, CGC
Shri D. Gogoi, [R-2 to 5]

Date on which judgment is reserved : 12.11.2026
Date of pronouncement of judgment : 12.11.2026

Whether the pronouncement is of the operative part of the judgment? : NA
Whether the full judgment has been pronounced? : Yes


Judgment & Order

The present application under Article 226 of the Constitution of India has
been filed seeking the following relief:

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“
In the premises aforesaid, it is, therefore, respectfully prayed that Your
Lordships may be pleased to admit this petition, call for the records and
issue a Rule calling upon the Respondents to show cause as to why:-
1) A writ in the nature of Certiorari shall not issued to set aside/quash the
impugned order vide Memo No. IASST/PF/17-18/16791-16796 dated
14/03/2018 issued by the Respondent no. 5 to the extent that "no further
extension will be made after expiry of the two months period" (Annexure-
K) and/or;
2) A writ in the nature of Mandamus shall not be issued directing the
Respondents to forthwith cancel/recall/rescind/forbear from giving affect
to the impugned order vide Memo No. IASST/PF/17-18/16791-16796
dated 14/03/2018 issued by the Respondent no. 5 to the extent that "no
further extension will be made after expiry of the two months period"
(Annexure-K) and/or;-
3) A writ in the nature of Mandamus shall not be issued directing the
respondents to consider the representation dated 12.03.2018 (Annexure-
J) submitted by the Petitioner by giving her an opportunity of hearing.
4) A writ in the nature of Mandamus shall not be issued directing the
respondents to consider the appeal dated 09/04/2018(Annexure-L)
submitted by the petitioner
5) A writ in the nature of Mandamus shall not be issued directing and
commanding the Respondents not to terminate the service of the
Petitioner and not to replace the Petitioner's service by another ad-hoc
employee and/or-
Upon cause(s) that may be shown, after hearing the parties and perusal
of records, Your Lordships may be pleased to make the Rule absolute
and/or to pass any other appropriate order(s) or direction as Your
Lordships may deem fit and proper.
-AND-
Pending disposal of the Rule, Your Lordships may be pleased to -
a) Direct the Respondents to not to terminate the service of the Petitioner
and/or not to replace the service of the Petitioner by another ad-hoc
employee.
And/or
b) Stay/Suspend the operation of the impugned order. vide Memo No.

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IASST/PF/17-18/16791-16796 dated 14/03/2018 issued by the
Respondent no. 5 to the extent that "no further extension will be made
after expiry of the two months period" (Annexure-K). And/or to pass such
further or other order(s) as Your Lordships may deem fit and proper.
And for this act of kindness, the petitioner as in duty bound shall ever
pray.”

2. As per the facts projected, an advertisement was issued by the Institute of
Advanced Study in Science & Technology (herein after IASST) on 09.11.2013 for
various posts including the post of Office Assistant. The petitioner being eligible
had applied for the said post. The recruitment consisted of written test followed
by viva-voce and in the same, the petitioner was selected and was initially
appointed vide an order dated 12.08.2014 for a period of 3 (three) months. The
said services were however on contractual basis. On 13.08.2014, the petitioner
had joined the services. It is the case of the petitioner that the services were
extended from time to time for various durations and before such extension,
there was a requirement to have the views of the Supervising Officer. Vide the
extension dated 26.08.2015, the services were extended by a period of one
year. It is also the case of the petitioner that on completion of every year of
service, there was an enhancement of the salary by 10%. For the year 2017,
the remarks by the Supervising Officer was in favour of an extension for one
year. However, such extension was given for a period of 6 (six) months. The
petitioner contends that such action was only because of the fact that in the
meantime, the petitioner was having pregnancy. It is also the case of the
petitioner that she had pregnancy related ailments and her expected date of
delivery was 25.06.2018. On 16.02.2018, the petitioner had applied in the
prescribed format for extension of service. However, for the first time, there was
an adverse remark regarding performance and regularity and accordingly, the

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last extension though given vide the impugned order dated 14.03.2018 was for
2 (two) months only. It was also stated that there will be no further
extension.The petitioner had preferred an appeal against the impugned order
dated 14.03.2018 which was not considered and accordingly the instant petition
has been filed.
3. I have heard Shri S. Bharali, learned counsel for the petitioner. I have also
heard Ms. B. Sharma, learned CGC and Shri D. Gogoi, learned counsel for the
respondent nos.2 to 5.
4. Shri Bharali, the learned counsel for the petitioner has submitted at the
outset that while the petition was moved, this Court vide order dated
09.05.2018 had passed an interim order and the said interim order was
extended from time to time. He however hastens to add that in spite of such
interim orders, the petitioner was not allowed to discharge her duties.
5. Coming to the merits of the case, the learned counsel for the petitioner
has submitted that though her induction in the services of the respondent no.2
was contractual in nature and for a particular duration, such duration was
extended after timely review on the performance. He also submits that though
such durations were for various period, vide the order dated 26.08.2015, the
extension was given for a period of one year with the further grant of
enhancement of pay by 10% per year. He submits that as per the requirement,
there is a formaton which applications for extension are to be submitted and
there is a requirement of the remarks of the Supervising Officer. He submits that
in all such extension formats, there were favourable remarks by the Supervising
Officer recommending for grant of extension. However, the attitude of the
respondent no.2 had changed when the petitioner had become pregnant and in
spite of there being a favourable remark for granting extension for one year,

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such extension was given by only 6 (six) months. He has submitted that the last
application for extension dated 16.02.2018 was not considered in the proper
perspective and the Supervising Officer had made an adverse remark regarding
her performance and regularity. He submits that apart from the aspect that such
remarks were not communicated, those remarks ex facie appears to be made
without any application of mind to the relevant factors, namely, that the
petitioner was suffering from ailments related to her pregnancy. This culminated
in the impugned order dated 14.03.2018 whereby though the services of the
petitioner though extended, was only for a period of 2(two) months with a
further stipulation that there would be no further extension. By drawing the
attention of this Court to the Maternity Benefit Act, 1961, he has submitted that
the impugned action is in violation of the provisions of the said Act, more
particularly, Section 5 and 12. In this regard, he has placed reliance on the case
of the Hon’ble Supreme Court reported in (2024) 1 SCC 421 (Dr. Kavita
Yadav vs. Secretary, Ministry of Health and Family Welfare
Department and Ors.) . He has submitted that the benefits has to be granted
even to a contractual employee and the impugned action clearly appears to be
in violation of the aforesaid provision wherein the Hon’ble Supreme Court has
deprecated the practice of discharging employees, who were pregnant and
suffering from pregnancy related ailments.He has also submitted that similarly
situated persons have been given the benefit of regularisation of service.
6. The learned counsel for the petitioner has submitted that there is a
requirement for consideration of the case of the petitioner by proper application
of mind which has not been done and accordingly, appropriate directions are
required to be issued.
7. Per contra, Shri Gogoi, the learned counsel for the respondent nos.2 to 5

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has defended the order dated 14.03.2018. At the outset, he has submitted that
there is no violation of the interim order dated 09.05.2018 and as there was no
direction as such to continue with the services of the petitioner. He otherwise
submits that such continuation would be within the discretion of the Institute.
8. On the merits of the case, the learned counsel for the respondents has
submitted that the last extension dated 14.03.2018 was based on the remarks
made by the Supervising Officer which is one of the relevant factors. Since there
was an adverse remark regarding the performance and regularity, the order
dated 14.03.2018 was passed whereby, there was no discharge as such but an
extension which was for 2 (two) months. He has submitted that there is no
mala fide involved in the aforesaid action and there is no violation to the
provisions of the Maternity Benefit Act, 1961.
9. So far as the aspect that certain contractual employees were regularized in
service, the learned counsel for the respondents has denied the same and has
drawn the attention of this Court to the additional affidavit filed on 25.08.2026
whereby such recruitment has been done after a fresh advertisement issued in
the year 2023. He has submitted that in the said recruitment, the petitioner did
not participate and therefore, the present claim would not be maintainable. He
has also submitted that in future, if any need arises, the petitioner would be
considered, if she applies for the same.
10. In his rejoinder, Shri Bharali, the learned counsel for the petitioner has
submitted that the advertisement of the year 2023 contains a specific clause on
the age and it was only for in-house candidates for whom the upper age was
relaxed and therefore, the petitioner could not participate in the same due to
over age. He reiterates that the impugned order dated 14.03.2018 is nothing
but an order of discharge from service which is in violation of the law as well as

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based on irrelevant factors.
11. The rival contentions advanced in the Bar have been duly considered and
the materials placed before this Court have been carefully perused.
12. There is no manner of doubt that though the initial appointment of the
petitioner was in contractual service for a particular duration, the same was
preceded by a recruitment process in which the petitioner was found to be
successful. A perusal of the duties and responsibilities which have been assigned
in the order of appointment would also give an idea that such duties are not for
a particular period. The fact that the contractual appointment was extended
from time to time which also included an extension for a period of one year vide
order dated 26.08.2015 would also fortify the impression given that such
services were not limited by any particular duration or was not connected with
any project which has come to an end. This Court has also noticed that in all
extension, there was a requirement for a remark by the Supervising Officer and
such remarks were found to be consistently in favour of the petitioner. The
problem arose when the petitioner had become pregnant and was also suffering
from pregnancy related ailments.
13. Under those circumstances, the application for extension dated
16.02.2018 in which there were adverse remarks regarding performance and
regularity requires to be carefully examined. It is also the case of the petitioner
that such adverse remarks have not been communicated to her. The aforesaid
remark,when viewed in the light of the previous remarks, which were in favour
of the petitioner, coupled with the fact that the petitioner was having pregnancy
related ailments and was entitled to the protection of the Maternity Benefit Act,
1961, does not appear to be consistent and reasonable. At the same time, this
Court by taking into consideration the facts and circumstances is also of the

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opinion that an employer cannot be forced to employee the petitioner on
contractual grounds unless such service is required. The subsequent recruitment
drive for similar nature of work, however gives the idea that the services cannot
be said to be not required. The long duration of service rendered by the
petitioner since her appointment in the year 2014 till the last extension in the
year 2018 would also give an idea that the services cannot be treated to be
temporary in nature.The appeal submitted by the petitioner has also not been
considered and communicated to the petitioner.
14. At this stage, the affidavit-in-opposition filed by the respondent nos.2 to 5
on 06.01.2021 is required to be taken into consideration. In paragraph 7 of the
said affidavit, a general proposition has been laid down that the said posts are
retained after extension of their services for further period if their services are
required in the said section and if their performance is satisfactory in the
previous period as well as if the employees fulfil some other relevant conditions
otherwise their services are not extended. For ready reference, the relevant
averments are extracted herein below:
“ 7. That with regard to the statements made in paragraph 6 of the
petition, your deponent begs to state that all the statements are not true
and correct and hence same are denied by the answering deponent. The
answering deponent begs to state that in her appointment letter, the
duties and responsibilities of the petitioner as Office Assistant had been
assigned to her. Be it mentioned here that in the Academic Section of the
Institute, there are regular employees to perform the day to day works.
But in some period of time, due to certain short-term over work load in
the section, additional men power is required to mitigate the work load. It
is not true and correct that post of Office Assistant is very essential post in
Academic Section to run the work in the said section of the Institute. In
fact, the contractual employees are appointed for a specific work for a
specific period to manage the work load in the various sections of the
Institute and all are equally essential. The said posts are retained after

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extension of their services for further period if their services are required
in the said section and if their performance is satisfactory in the previous
period as well as if the employees fulfil some other relevant conditions
otherwise their services are not extended.”

15. Upon consideration of the facts and circumstances, this Court is of the
opinion that the matter is required to be re-looked by the employer, namely, the
respondent no. 2 by taking into consideration the relevant factors. Amongst
others, the performance of the petitioner for the period 2014 till the last
extension order including the remarks which were favourable for the petitioner
are to be taken into consideration. The consideration would also be on the
aspect on the petitioner's, plea to have the benefit under the Maternity Benefit
Act, 1961. It is needless to state that if the decision is against the petitioner,
appropriate reasons are to be assigned and communicated. To facilitate such
consideration, the petitioner is required to file a detailed representation within a
period of 2 (two) weeks from today and if the same is done, the respondent
authorities is directed to consider the same within a period of 3 (three) weeks
from the date of receipt of such representation. During such consideration, the
petitioner is also required to be given a personal hearing so as to enable her to
place her case in the proper perspective. As mentioned above, the outcome of
such consideration be communicated to the petitioner in writing. It is needless
to state that if the petitioner is aggrieved by such consideration, she would be
at liberty to approach this Court.
16. Writ petition accordingly stands disposed of.
JUDGE
Comparing Assistant